Gov. Jared Polis is still trying to find a way to comply with a federal immigration subpoena, four months after a Denver judge ruled that doing so would violate Colorado law.
In repeated court filings, including one submitted Friday, Polis’ private attorneys have said they intend to turn over records on 10 businesses that employed several sponsors of unaccompanied children to U.S. Immigration and Customs Enforcement.
They’ve asked a Denver judge, who previously prohibited some state employees from complying with ICE’s subpoena, to dismiss the case and clear the way for them to turn over a more limited batch of records.
The recent filings represent the second attempt by Polis to comply with the April immigration enforcement subpoena. The governor’s first attempt was blocked by District Court Judge A. Bruce Jones in June, after Jones sided with a senior state employee who’d sued Polis earlier that month to stop the state from fulfilling the subpoena.
The employee, Scott Moss, argued that providing the requested records would violate state laws that limit what information can be shared with federal immigration authorities.
But though Jones preliminarily sided with Moss, his ruling is complicated. He prohibited Polis from directing a specific division of the Colorado Department of Labor and Employment to comply with the subpoena. But he said he couldn’t prevent Polis from directing others to comply with the subpoena, even though Jones said doing so would still likely violate the law.
The records that Polis now says he intends to turn over to ICE are in the custody of another labor department division not covered in Jones’ order.
In an email Tuesday, Polis spokeswoman Shelby Wieman declined to comment on the case or why Polis is still seeking to provide records to ICE. She pointed to the administration’s recent legal filings.
The administration has previously said it wanted to support ICE’s efforts to check on unaccompanied minors without legal status, though the governor’s office has not provided any evidence that it has sought assurances that ICE wasn’t seeking the information purely for immigration enforcement efforts.
David Seligman, whose law firm has supported the case, criticized the governor’s decision to seek the lawsuit’s dismissal while indicating his intention to turn over records to ICE. While ICE wrote that it wanted detailed employment records so it could check on the well-being of unaccompanied children, Seligman and Moss, the employee who brought the lawsuit, have argued that the agency only wants the information so it can arrest and deport the children’s sponsors.
“It is absolutely absurd that this governor would be going out of his way to comply with and cooperate with ICE in light of everything that we’re seeing right now,” Seligman said.
Moss has since left the department, and Polis’ lawyers now argue that no one associated with the case has a legal standing to challenge compliance with the subpoena. They’ve also argued that they can turn over the records because the employers’ addresses and contact information can be found online.
The records are only part of the broader swath of personal details that ICE initially requested, and they cover only six of the 35 sponsors for which ICE first sought records. The sponsors are typically family members of children without legal status, who care for the minors while their immigration cases proceed.
The administration has similarly told ICE officials that it intends to comply with part of the subpoena once the lawsuit is concluded. In a July 11 email, Joe Barela, the head of the Department of Labor and Employment, wrote to a special agent in ICE’s investigative branch that the agency planned to “provide your office with the names and contact information for those 10 employers.”
The labor department has already complied with three ICE subpoenas this year, including in one “erroneous” case that apparently ran afoul of state law.
Jones must now rule on whether to dismiss the lawsuit or let it proceed. Between June and early September, Recht Kornfeld, the private law firm Polis hired to represent him in the lawsuit, has billed the state for more than $104,000, according to records obtained by The Denver Post through a public records request.
The Colorado Attorney General’s Office has said it was unable to represent Polis because of legal advice it provided to the governor related to complying with the subpoena. The office has declined to characterize the nature of that advice.
The subpoena was sent to the state labor department in April as part of what ICE described as essentially a welfare check of unaccompanied minors in the state. The subpoena sought employment and personal records for the children’s sponsors.
Initially, administration officials decided not to comply with the subpoena because of the state’s laws limiting such contact. But Polis abruptly changed course and decided to turn over the records, prompting Moss to sue.
Polis’ office has claimed that the governor wanted to comply with the subpoena because it was part of a “targeted” criminal investigation into human trafficking. The state’s immigration laws — including one signed by Polis in late May — allow state officials to comply with federal subpoenas if they’re part of criminal probes, rather than immigration enforcement operations.
But the governor’s office has not released any evidence that the criminal investigation actually exists or that it made any effort to ensure that it did.
Jones wrote that “the subpoena — on its face — was not issued as part of a criminal investigation,” and he said that no one in Polis’ office or the labor department, “with the potential exception of the governor himself,” actually believed that the subpoena was part of a criminal investigation.
The subpoena is not signed by a judge, and the federal statute that it cites is related to immigration enforcement.
In her email Tuesday, Wieman, Polis’ spokeswoman, did not address questions about whether the state had pursued or received any additional information confirming the existence of the investigation allegedly underpinning the subpoena. Nor did she address questions about whether Polis had directed any state resources to check on the children.
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